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Western Union Tel. Co. v. Bank, supra, is a case very much like the one at bar. It was there said:

"The fact that plaintiff was the sendee of the message, and not the sender, can make no difference. The weight of authority is that the sendee is bound by the regulations prescribed by defendant in relation to the time in which a claim for damages shall be presented and which limit liability for negligence in transtion of plaintiff's action is the alleged neglimitting an unrepeated message. The foundagence of the defendant in transmitting and delivering the telegram as originally delivered to it. Before plaintiff would be entitled to maintain an action, there must necessarily be some duty owing by defendant to him from a breach of which would flow such right. The contract between the sender of said message and the without the delivery of said message to defendant by the sender and without defendant having undertaken to transmit and deliver same to plaintiff, there would have been no duty owing to plaintiff by defendant, and hence no negligence in the absence of such a contract for which plaintiff could maintain an action."

publish their rates, rules, classifications, regulations, and practices, and file the same with the Interstate Commerce Commission; and that such rates, rules, regulations, classifications, and practices established by them shall be reasonable. It expressly authorizes them to classify messages into day, night, repeated and unrepeated, and such other classes as are just and reasonable, with authority to prescribe different rates therefor, and imposes penalties for any attempt to evade such published rates, rules, practices, and regulations, and confers upon the Interstate Commerce Commission jurisdiction to determine what rates, regulations, or practices are just and reasonable, and declares that such rules and regulations established by telegraph companies or other common carriers are deemed just and reasonable until changed by the In-defendant was for the benefit of plaintiff, and, terstate Commerce Commission. Western Union Tel. Co. v. Lee, 174 Ky. 210, 192 S. W. 70, Ann. Cas. 1918C, 1026; Western Union Tel. Co. v. Bank, 53 Okl. 398, 156 Pac. 1175. In Gardner v. Western Union Tel. Co., 231 Fed. 405, 145 C. C. A. 399, the plaintiff sued in the federal court for delay in delivering an unrepeated interstate message, without having presented his claim within the time required by the printed conditions on the back of the telegram. It was contended that that case was governed by section 9, art. 23, of the Constitution of Oklahoma, which pro

vides that

"Any provision of any contract or agreement, express or implied, stipulating for notice or demand other than such as may be provided by law, as a condition precedent to establish any claim, demand or liability, shall be null and void."

See, also, Haskell, etc., Co. v. Postal, etc., Co., 114 Me. 277, 96 Atl. 219; Meadows v. Postal Co., 173 N. C. 240, 91 S. E. 1009.

The Supreme Court of the United States, in Postal Co. v. Warren-Godwin Lumber Co., 251 U. S. 27, 40 Sup. Ct. 69, 64 L. Ed. ——, decided December 8, 1919, said:

"As it is apparent on the face of the act of 1910 that it was intended to control telegraph companies by the act to regulate commerce, we think it clear that the act of 1910 was designed to and did subject such companies as to their interstate business to the rule of equality and uniformity of rates which it was manifestly the dominant purpose of the act to regulate com

In holding that said constitutional provi-merce to establish, a purpose which would be sion did not apply for the reason that the telegram involved was interstate commerce, it was said:

"Congress has taken possession of the field of interstate commerce by telegraph, and it results that the power of the states to legislate with reference thereto has been suspended. The great necessity that commerce between the states should be free from such interference applies in a marked degree to interstate commerce by telegraph. If the regulation which is pleaded in bar in this suit should be held valid in Kansas and void in Oklahoma, and the illustration may be extended to all the states of the Union, then the power of the United States to regulate commerce between the states in relation to telegraphic business would not only be directly interfered with, but destroyed. * We are therefore of the opinion that, Congress having taken possession of the field of interstate commerce by telegraph, the provision of the Constitution of Oklahoma relied upon has become inoperative for the purpose of striking down the regulation in question. Whether the regulation is a reasonable one, or not, is in our judgment a question for the Interstate Commerce Commission to determine."

wholly destroyed if, as held by the court below, the validity of contracts made by telegraph companies as to their interstate commerce business continued to be subjected to the control of divergent and it may be conflicting local laws. *** But we need pursue the subject no further, since, if not technically authoritatively controlled, it is in reason persuasively settled by the decision of the Interstate Commerce Commission in dealing, in the case above cited [Clay County Produce Co. v. Western Union, 44 Interst. Com. Com'n R. 670], with the very question here under consideration as the result of the power conferred by the act of Congress of 1910; by the careful opinion of the Circuit Court of Appeals of the Eighth Circuit dealing with the same subject (Gardner v. Western Union Telegraph Co., 231 Fed. 405, 145 C. C. A. 399); and by the numerous and conclusive opinions of state courts of last resort which in considering the act of 1910 from various points of view reached the conclusion that the act was an exertion by Congress of its authority to bring under federal control the interstate business of telegraph companies and therefore was an occupation of the field by Congress which excluded state action"-citing with approval Western Union v. Bank, supra; Meadows v. Postal Co., supra;

(125 N.E.)

Gardner v. Western Union, supra; Western and thereunder a stipulation on the message Union v. Bilisoly, 116 Va. 562, 82 S. E. 91.

Western Union v. Bilisoly, supra, was an action to recover the statutory penalty for alleged delay in delivering a telegraphic message. The court held that such an action would not lie, saying:

blank that no recovery can be had beyond the toll paid for the message unless repeated, upon the payment of an extra charge, is valid and enforceable, when the suit is brought upon the contract, in the courts of that state. This case was followed in Norris v. Western Union, 174 N. C. 92, 93 S. E. 465.

The Supreme Court of the United States, in Western Union v. Boegli, 251 U. S., 40 Sup. Ct. 167, 64 L. Ed., decided January 12, 1920, in reversing the Supreme Court of this state (115 N. E. 773) said:

"By an act of Congress approved June 18, 1910, telegraph companies, so far as interstate business is concerned, have been placed under the direct supervision of the Interstate Commerce Commission, and are subject so far as applicable to the same rules, regulations, restrictions, and penalties that are imposed upon "The proposition that the act of 1910 must common carriers. This act has occupied the be narrowly construed so as to preserve the entire field and taken complete control of the reserved power of the state over the subject regulation of telegraph companies, and, while in hand, although it is admitted that that powit has impliedly exempted them from any pen-er is in its nature federal and may be exercised alty for negligence, it has provided a severe by the state only because of nonaction by Conmaximum penalty for intentional discrimination. * * It would be inconvenient as well gress, is obviously too conflicting and unsound to require further notice. *** We are of as unnecessary to recite the detailed provi- opinion that the provisions of the statute bringsions of the act of Congress approved June 18, ing telegraph companies under the act to reg1910. It is sufficient to say that by it Con-ulate commerce as well as placing them under gress has occupied the field of regulation with the administrative control of the Interstate respect to interstate telegrams, and hence the Commerce Commission so clearly establish the state statute imposing a penalty for failure to purpose of Congress to subject such companies make prompt delivery can no longer be in- to a uniform national rule as to cause it to be voked in such cases. The act of Congress has certain that there was no room thereafter for ousted the state of jurisdiction over the sub- the exercise by the several states of power to ject." regulate, by penalizing the negligent failure to ' deliver promptly an interstate telegram, and that the court below erred therefore in imposing the penalty fixed by the state statute."

The liability of a common carrier of telegrams for mental suffering is since the Act of Congress June 18, 1910, controlled by the federal law which supersedes state regulations and decisions. Western Union v. Schade, 137 Tenn. 214, 192 S. W. 924.

In Bailey v. Telegraph Co., 97 Kan. 619, 156 Pac. 716, the defendant answered that the receipt, transmission, and delivery of the message was a part of interstate commerce, and was governed by the Act of Congress of June, 1910, and that by the defendant's rule its liability was limited in cases of unrepeated messages to the amount received for sending the same. The court in holding this answer good said:

"Prior to the passage of the act of Congress in June, 1910, whatever may have been the law governing the right to recover damages on account of the delay in the delivery of telegraph messages, since the passage of that act, the decisions appear almost unanimous that the limitations on the liability of telegraph companies for damages caused by delay in delivering the messages are governed by the regulation above set out, and that no other recovery can be had."

To the same effect, see Durre v. Western Union, 165 Wis. 190, 161 N. W. 755.

Meadows v. Telegraph Co., 173 N. C. 240, 91 S. E. 1009, was also an action to recover damages for failure to correctly transmit and deliver an unrepeated unrepeated telegram. It was there held that, Congress having assumed entire control of interstate messages, the decisions of the federal courts are controlling,

See Western Union v. Boegli, 126 N. E. 482, decided March, 1920.

The Interstate Commerce Act, as amended

June, 1910, has expanded until it compre hends and includes the questions involved in the case at bar, and being the supreme law in so far as interstate telegrams are concerned, suspends the operation of any state statute or regulation, or the force and effect of any decision in opposition thereto, in so far as they conflict with said amendment.

[2] From the above authorities, it is clear that, Congress having assumed jurisdiction to regulate telegraphic business of an interstate nature, its authority in the premises is supreme, and the rules and regulations prescribed by appellant in accordance with the authority conferred by the act so long as they have not been declared unreasonable are binding upon the parties hereto.

It follows that the conditions printed on the back of the telegram limiting the liability of appellant for mistakes in the transmission or delivery of an unrepeated telegram to the amount received for sending the same, and requiring claims for damages to be presented within 60 days, are binding upon the parties hereto.

The court erred in sustaining the demurrers to the several paragraphs of answer which sought to limit appellant's liability under the contract.

Judgment reversed, with directions to, manded to said court of common pleas for grant appellant a new trial and for further further proceedings according to law.

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(72 Ind. App. 376) JONES et al. v. LONG. (No. 9964.) * (Appellate Court of Indiana, Division No. 1. Nov. 19, 1919.)

Proceeding between one Wright and others and one Longanecker. Case certified by Court VENDOR AND PURCHASER 144(1) - SUFFIof Appeals. Affirmed.

James & Coolidge, McMahon & McMahon,
Chas. D. Bronson, and Robert K. Landis, all
of Dayton, for plaintiffs in error.
Mattern & Brumbaugh, of Dayton, and W.
H. Miller, for defendant in error.

PER CURIAM. Judgment affirmed, on authority of Ash et al. v. Marlow, 20 Ohio, 119. Judgment affirmed.

NICHOLS, C. J., and MATTHIAS, JOHNSON, DONAHUE, WANAMAKER, and ROBINSON, JJ., concur.

(99 Ohio St. 438)

WARNER v. ERIE R. CO. (No. 15870.)
(Supreme Court of Ohio. Dec. 10, 1918.)
Error to Court of Appeals, Cuyahoga
County.

Proceedings between one Warner and the Erie Railroad Company. From a judgment of the Court of Appeals, Warner brings error. Modified and remanded.

Howell, Roberts & Duncan, of Cleveland, for plaintiff in error.

Cook, McGowan, Foote, Bushnell & Lamb, of Cleveland, for defendant in error.

PER CURIAM. This court finds from the record and the entry of the Court of Appeals that the judgment of that court is in effect a determination by that court that the judgment of the court of common pleas was against the weight of the evidence on the issue of contributory negligence, and this court finds from the record that it was the function of the jury to weigh the evidence on that issue, as well as the other issues in the case. It is therefore ordered and adjudged by this court, on the authority of Stugard, Adm'r, v. P., C., C. & St. L. Ry. Co., 92 Ohio St. 318, 110 N. E. 956, that the judgment of the Court of Appeals be and the same is hereby modified, so as to provide that the judgment of the court of common pleas be reversed, on the ground that the verdict of the jury, and the judgment entered thereon, was against the weight of the evidence, and the cause is re

CIENCY OF TITLE IN ACTION FOR BREACH OF
CONTRACT.

Where a contract for the exchange of realty provided that plaintiff was to convey by warranty deed certain described realty for a stated consideration subject to an incumbrance of $4,000 and to a certain lease, and that if there should be any defect in the title a reasonable time should be given to cure it, evidence in a suit for breach that the incumbrance was one of $8,000 instead of $4,000, and that drainage liens also existed, did not constitute merely a defect in defendant's title, but changed the very substance of the contract, and consequently could not support a judgment for plaintiff.

Appeal from Circuit Court, Bartholomew County; John W. Donaker, Judge.

Action by John W. Long against Delia C. Jones and others. Judgment for plaintiff, a new trial was denied, and defendants appeal. Reversed, with instructions.

Thomas E. Davidson, George L. Tremain, and Rollin A. Turner, all of Greensburg, for appellants.

John F. Goddard and John W. Craig, both of Greensburg, for appellee.

ENLOE, J. This was an action by appellee against the appellants to recover damages for the alleged breach of a certain contract, for the sale and exchange of real estate.

The suit was brought in Decatur county, and afterwards by change of venue was sent to Bartholomew county for trial. The case was tried upon an amended second paragraph of complaint, to which an answer in general denial was filed. The case was tried before the court without the intervention of a jury. There was a finding for appellee and judgment in his favor in the sum of $1,200. The appellants duly filed their motion for a new trial, which being overruled, they prosecute this appeal.

The only error assigned is the action of the court in overruling appellant's motion for a new trial, and under this motion we are only required to consider whether the decision of the court was sustained by sufficient evidence.

The only parts of said paragraph of complaint necessary to be considered on this appeal are the following:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied.

(125 N.E.)

"Said plaintiff avers that he has done and per- [ same; that on the 9th day of April, 1915, formed all the things by him to be done and the appellee tendered his abstract of title performed under the terms of said contract, covering said Starke county lands, to the apand that said defendants have each of them fail- pellants, and demanded that they (appellants) ed and refused to comply with the terms of said proceed with the execution and carrying out contract, although demand was duly made upon them before the commencement of this action. of the said contract by executing a deed to That plaintiff was then and there, and ever the lands in Decatur county, and invoicing since has been, ready and willing to convey his personal property, etc.; and that the appelsaid real estate and pay any cash difference lants refused to proceed with the carrying owing, and to comply with all the terms and out of said contract. conditions of said contract by him to be complied with, upon a compliance by defendants with the terms of said contract, and now offers to do so. And plaintiff says that said defendants have at all times refused to comply with

the terms of said contract and now refuse."

The said contract was attached to said complaint as an exhibit thereto. The only parts of said contract necessary to be considered in the determination of this case are as follows:

"That in consideration of the covenants hereinafter expressed, the said first parties herein agree to convey to said second party, by a good and sufficient warranty deed, furnishing an abstract of title showing a good and sufficient merchantable title in them, the following described real estate in Decatur county, Indiana, to wit: (Here follows a description of the real estate). * And in considera

tion of said sale and transfer by said first parties to said second party, the said second party agrees to convey to said first parties, by a good and sufficient warranty deed, together with an abstract showing a good and sufficient merchantable title in said second party, the following described real estate in Starke county, Indiana, to wit: (Here follows a description of the lands in Starke county) for and in consideration of the sum of $20,000.00, subject to an incumbrance in the sum of $4,000.00, leaving an equity in the sum of $16,000.00, and also subject to a lease which expires March 1, 1916, to be assigned to said first parties. * If there shall be any defect in the title of either party to said property herein mentioned and described, a reasonable time shall be given to cure said defect. If any action shall be necessary to quiet title or to cure any defect in the title the party whose title is so defective shall furnish to the other party a bond covering said defect and the expense of such litigation and this trade shall be closed as herein specified without awaiting the results of such action."

*

*

It appears from this record that the above contract was entered into March 15, 1915, and that thereafter on the 27th day of March, 1915, appellee, his wife joining therein, executed a deed for said Starke county lands, to appellants, except that no revenue stamp was placed thereon, and placed said deed in the hands of one Walter W. Bonner, in escrow, as had been agreed upon, at the same time giving to said Bonner the money necessary to procure the revenue stamp to be placed thereon, in case said deed was accepted, and authorized him to cancel the

125 N.E.-4

It further appears from this record that, as shown by the said abstract of title, the said Starke county lands, mentioned in said contract, were incumbered by a mortgage in the sum of $8,000, and also that said lands were included in the lands described in a certain drainage petition theretofore filed and then pending in the said Starke circuit court, and that, if said drain were established, said lands would be assessed as benefited, but the amount of such benefits were at that time undetermined.

The determination of the rights of the parties to this appeal depends upon the construction to be given to the language of the aforesaid contract of sale.

The language of the said contract, as to what the appellee had agreed to do, is clear, definite, and certain:

fer by said first parties, to said second party, fer by said first parties, to said second party, the said second party agrees to convey to said first party, by a good and sufficient warranty deed, together with an abstract showing a good and sufficient merchantable title in said second party, the following described real estate in The southStarke county, Indiana, to wit: west quarter of section two (2), township thirty-two (32) north, range two (2) west, for and in consideration of the sum of $20,000.00, subject to an encumbrance in the sum of $4,000.00, leaving an equity in the sum of $16,000.00, and also subject to a lease which expires March 1, 1916, to be assigned to first parties."

"And in consideration of said sale and trans

In the latter part of said contract we find the clause concerning "defects" as hereinbefore set out.

Was the mortgage for $8,000 on said lands

instead of $4,000 as mentioned in said contract-a "defect" in the title of appellee, within the contemplation of the parties to said contract, at the time they signed the same, and therefore within the exceptions of the last above quoted clause? If it was, then the contract provided what should be done and fixed the rights of the parties; but if, on the other hand, it was not such a “defect" as contemplated by said clause, then the appellee did not have, as shown by said abstract so tendered by him, the title which he had agreed to convey, and the appellants were not bound to accept the same.

A purchaser is entitled to receive that for which he bargains, and not another and different thing, and a tract of land incumbered by a mortgage of $4,000 is quite a different

amount of taxes, penalty, interest and costs, and the full amount of principal, interest, penalty, and costs paid out on the school fund sale, the offer to do equity entitled the owner to maintain her action for reconveyance.

thing from the same tract of land incumbered | had offered to pay to the purchaser the full by a mortgage for $8,000, and also drainage liens, and for the court to say that the party must accept something different from that for which he bargained would be for the court to nullify the contract as made, and in effect substitute itself as one of the parties to such contract. When this point is arrived at, the making of any and all contracts by the parties becomes a useless thing; thereafter the power and right to contract would be gone.

The evidence offered by appellee does not only not sustain the allegations of the complaint, but establishes the facts to the contrary. The motion for a new trial should have been sustained.

The judgment is therefore reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings.

(71 Ind. App. 337)

MILLER v. MEADOWS. (No. 10066.) (Appellate Court of Indiana, Division No. 1. Nov. 18, 1919.)

1. APPEAL AND ERROR 193(9)-REVIEW OF SUFFICIENCY OF COMPLAINT DEPENDENT ON

OBJECTION IN LOWER COURT.

The assignment of error that the complaint

does not state facts sufficient to constitute a cause of action presents no question, where defendant filed general denial, affirmative pleas, and cross-complaints, but did not raise the question below by demurrer.

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2. APPEAL AND ERROR 761-WAIVER OF AS-
IN
SIGNMENT BY FAILURE ΤΟ MENTION
"POINTS AND AUTHORITIES.'
Error in overruling demurrer to the reply
to the second paragraph of defendant appel-
lant's answer is waived by appellant by his
failure to mention or discuss it under "points
and authorities" in his brief.

3. TRIAL 405(1)-EXCEPTION TO CONCLU-
SION OF LAW AN ADMISSION OF CORRECTNESS

OF FACTS.

An exception to a conclusion of law, that the same is erroneous, proceeds on the theory that the facts on which it was based were full

and correct.

4. TAXATION 788(3)-Burden of PURCHASER AT TAX SALE TO SHOW REQUISITE STEPS. In the absence of finding or record showing that a tax deed was witnessed by the county treasurer, it was not, so far as disclosed by the record, prima facie evidence of the title, and the burden was on defendant purchaser at the tax sale to show that every step required by law from the listing of the land for taxation to the delivery of the deed had been complied with. 5. EQUITY ~66—ACTION FOR RECONVEYANCE BY SCHOOL FUND MORTGAGOR against purCHASER AT AUDITOR'S SALE.

Where the former owner of land sold by the county auditor to satisfy a school fund mortgage

Appeal from Circuit Court, Monroe County; Robert W. Miers, Judge.

Action by Sallie A. Meadows against Oscar G. Miller. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert G. Miller and James W. Blair, both of Bloomington, for appellant. Thomas J. Sare, of Bloomington, for appellee.

ENLOE, J. This was an action by appellee against appellant, founded upon a complaint in two paragraphs. In the first paragraph she alleged that she was the owner of certain lands, and as such had theretofore borrowed money from the auditor of Monroe county and executed a school fund mortgage thereon to secure payment of out warrant or authority of law, attemptthe same; that said auditor had, withed to sell said lands so mortgaged to the appellant, and had executed executed a pretended deed of conveyance therefor; that said pretended deed was void, setting out specifically a number of reasons therefor; that she had tendered to appellant the money paid by him for said land, and that he refused to receive the same; and that she had then paid said money to the auditor of said county, in redemption from said pretended sale, and for the use and benefit of said appellant. She asked that a commissioner be appointed to reconvey said lands to herself, and for all proper relief. The second paragraph was an ordinary complaint to quiet title.

The appellant answered, first, by general denial, and also by a second paragraph, setting up said sale by said auditor to himself, also alleging the full payment of the purchase money therefor, and that he had purchased said lands at said sale to protect himself as the owner and holder of a tax title, acquired by the purchase of said lands at a sale of lands for delinquent taxes, and for which lands, under said sale, he had received from the auditor of said county a tax deed, and that he had paid taxes thereon, etc. To this paragraph of answer appellee replied in general denial, and also by an affirmative reply in one paragraph, to which paragraph of reply appellant unsuccessfully demurred.

The appellant also filed a cross-complaint in three paragraphs-the first being the ordinary complaint to quiet title; the second alleging the sale of said lands for taxes, the purchase thereof by appellant, the receipt

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes

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